We, İnal Law Office, are pleased to present below the competition law developments in Türkiye in the first quarter of 2024.

An Investigation Has Been Launched Regarding Yemeksepeti

In the announcement published on the officialwebsite of the Turkish Competition Authority (the “TCA”) on 22 March 2024, it was announced that the preliminary investigation regarding the allegations that Yemek Sepeti Elektronik İletişim Perakende Gıda A.Ş. had violated Articles 4 and/or 6 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) by obliging the usage of its own courier service within the scope of online food ordering-service platform service, and making it difficult for member businesses to operate, was concluded and it was decided to open an investigation against Yemeksepeti.

An Investigation Has Been Launched Regarding Çiceksepeti

On the official website of the TCA, it has been announced that as a result of the preliminary investigation conducted regarding the allegation that Çiçeksepeti İnternet Hizmetleri A.Ş. had violated Article 6 of the Law No. 4054 by closing its platform services to third parties and acting in favour of its own dealers, it was decided to open an investigation against Çiçeksepeti.

An Investigation Has Been Launched Regarding ABC Deterjan

On the official website of the TCA, it was announced that as a result of the preliminary investigation conducted regarding the allegation that ABC Deterjan Sanayi ve Ticaret A.Ş. had violated Article 4 of the Law No. 4054 by determining the resale prices of its buyers, it was decided to open an investigation against ABC Deterjan.

An Investigation Has Been Launched in the Medical Device Sector

It has been announced on the official website of the TCA that as a result of the preliminary investigation conducted regarding the allegation that Bıçakcılar Tıbbi Cihazlar Sanayi ve Ticaret A.Ş., Gazi Kimya Sanayi ve Ticaret A.Ş. and Rectus Medikal Ürünler ve Sağlık Hizmetleri Sanayi ve Ticaret Limited Şirketi had violated Article 4 of the Law No. 4054, it was decided to open an investigation against these 3 undertakings. The alleged violation subject to the investigation has not been disclosed in the announcement.

.An Investigation Has Been Launched Against Bağdat Baharat and Deva Baharat

On the official website of the TCA, it was announced that as a result of the preliminary investigation conducted regarding the allegation that the buyers of Bağdat Pazarlama Ticaret ve Limited Şirketi and Deva Baharatları Gıda Sanayi ve Ticaret Limited Şirketi had violated Article 4 of the Law No. 4054 by setting resale prices, it was decided to open an investigation against these 2 undertakings.

Various Investigations Have Been Initiated in the White Meat Sector

In the announcements published on the official website of the TCA; it was announced that as a result of the preliminary investigation conducted regarding the allegation that 10 undertakings operating in the white meat sector violated Article 4 of the Law No. 4054 by exchanging information sensitive to competition, it was decided to open an investigation against these 3 undertakings. In addition to the investigation, it was announced that it was decided to launch the following investigations regarding these 3 undertakings which are party to the aforementioned investigation:

  • To determine whether Abalıoğlu Lezita Gıda Sanayi A.Ş. had violated Article 4 of the Law No. 4054 by determining the resale price of its buyers,
  • To determine whether Erpiliç Entegre Tavukçuluk Üretim Pazarlama ve Tic. A.Ş. had violated Article 4 of the Law No. 4054 by imposing region and customer restrictions on its buyers,
  • To determine whether Hastavuk Gıda Tarım Hayvancılık Sanayi ve Ticaret A.Ş. had violated Article 4 of the Law No. 4054 by determining the resale prices of its buyers, imposing non-competition obligation and region and customer restrictions.

The Preliminary Investigation Regarding Discriminatory Practices of Trendyol Has Been Concluded

As a result of the preliminary investigation conducted by the Turkish Competition Board (the “Board”) to determine whether Trendyol had violated Article 6 of the Law No. 4054 by making a discrimination between sellers and manually intervening in the algorithm upon the complaint of Padella Makarna, the Board had decided to not open an investigation on April 2023, and the reasoned decision has been published currently. As a result of the investigation, it has been determined that Trendyol is maintaining its dominant position in the multi-category e-marketplace market in Türkiye, however no information or findings that can be considered as the abuse of dominant position were found. Finally, contrary to the Board’s previous decision requiring Trendyol to cease all kinds of actions, behaviours and practices, including interventions through algorithms and coding which may cause discrimination among sellers selling on the marketplace, it has been decided that there is no ground to launch an investigation.

Preliminary Investigation Concluded on Undertakings Operating in the Light and Medium Class and Heavy Commercial Vehicles Sector

The preliminary investigation initiated as a result of the allegation that the undertakings Mercedes, Ford Otosan, BMC, Isuzu, Scania, Volvo, Renault Trucks, Iveco and MAN, operating in the light and medium class and heavy commercial vehicle sector, had violated Article 4 of the Law No. 4054 by being a party to an information exchange that restricts competition, has been concluded by the Board’s decision that there is no need to open an investigation. The Board has considered that, since the information was obtained during customer visits, through dealers, as a result of field studies or through price information on the websites of the undertakings, it did not constitute an information exchange restricting competition.

Investigation Against Ferrero Terminated with Commitment

The TCA, within the scope of the investigation regarding the allegation that Ferrero International SA and its subsidiaries violated the Law No. 4054 by engaging in actions at all levels from production to purchase, crushing and export in the hazelnut market, has examined the commitments submitted by Ferrero and determined that the competitive concerns arisen were eliminated by the commitments,  and has decided to terminate the relevant investigation as a result of the commitments submitted by the undertaking.

Investigation Against Nestlé Concluded

As a result of the investigation conducted by the Board against Nestlé Türkiye Gıda Sanayi A.Ş., it was determined that Article 4 of the Law No. 4054 was violated by determining the resale prices of its distributors and imposing region and customer restrictions on its distributors, and it has been decided to impose an administrative fine of TRY 346,911,505.44.

Investigation on Gentlemen’s Agreements in the Labour Market Concluded

On the official website of the TCA, it was announced that the investigation conducted against certain undertakings due to gentleman’s agreements in the labour market was concluded.

As a result of the investigation, it was decided to impose administrative fines on the total of 8 undertakings (Egem Bilgi İletişim Ticaret AŞ, Ericsson Telekomünikasyon AŞ, Etiya Bilgi Teknolojileri Yazılım Sanayi ve Ticaret AŞ, Innova Bilişim Çözümleri AŞ, i2i Bilişim Danışmanlık Teknoloji Hiz. ve Paz. Tic. AŞ, Netaş Telekomünikasyon AŞ, Pia Bilişim Hizmetleri AŞ, Turkcell İletişim Hizmetleri AŞ) due to being the parties to anti-competitive agreements, while it was decided not to impose administrative fines on 12 undertakings against which an investigation was conducted.

The noteworthy point in the short decision is the evaluation of the violation in question as a “cartel” within the scope of the Regulation on Agreements, Concerted Practices and Decisions Restricting Competition and Fines to be imposed in Case of Abuse of Dominant Position, which indicates that the infringements in the labour markets continue to be evaluated within the scope of “cartel” by the Board.

When the short decision is analysed, it is seen that the administrative fine was increased by half for five of the undertakings for which an administrative fine was decided to be imposed due to the fact that their participation in the infringement in question lasted for more than one year and less than five years, while the administrative fine was not increased for the other three undertakings due to the fact that their participation in the infringement lasted for less than one year.

 

Investigation on Abuse of Dominant Position by Nesine.com Concluded

As a result of the investigation conducted by the Board against D Elektronik Şans Oyunları ve Yayıncılık A.Ş. (“Nesine“) it has been determined that;

  • Nesine has a dominant position in the market for fixed odds betting games played by virtual bookmakers,
  • Nesine has entered into exclusive agreements with sports clubs for advertising, promotion and sponsorship,
  • That has entered into exclusivity agreements with undertakings for field advertising of the sports clubs,
  • Has entered into exclusive agreements with Maçkolik İnternet Hizmetleri Ticaret A.Ş. for the purchase of advertising services

and has abused its dominant position due to the aforementioned acts and has violated Article 6 of the Law No. 4054.

As a result of the determination of violation, the Board has decided to impose an administrative fine on Nesine and imposed obligations on Nesine to remove all provisions that may directly or indirectly lead to exclusivity in the contracts it has concluded with sports clubs for advertising, promotion and sponsorship, and to not include provisions that may directly or indirectly lead to exclusivity in the contracts it will conclude.

The Investigation Against Aksaray Unlu Mamulleri was Concluded with Settlement

The TCA has announced that the investigation conducted regarding Aksaray Unlu Mamulleri Gıda Sanayi ve Ticaret Limited Şirketi was concluded. The investigation regarding the allegations that Aksaray Unlu Mamulleri had violated Article 4 of the Law No. 4054; by determining the resale price of buyers in the FMCG sector in which it operates as a manufacturer/supplier, by allocating the regions where buyers will sell, and by imposing non-competition obligations on its buyers was terminated as a result of the acceptance of the settlement and commitment texts.

Regarding the actions that the allocation of the regions and customers to be sold by the buyers and the imposition of non-compete obligation on the buyers, Aksaray Unlu Mamulleri has submitted a commitment text to the TCA and since the commitments submitted were capable of eliminating the identified competition problems, the termination of the investigation in terms of the actions related to the aforementioned violations has been decided. Regarding the allegation of resale price determination of the buyers, Aksaray Unlu Mamulleri has filed a settlement application and the relevant part of the investigation has been concluded upon the imposition of a fine of TRY 2,219,764.61 to the undertaking decision as a result of the settlement.

Investigation Against Yıldırımoğlu Terminated with Commitment

As a result of the investigation conducted by the Board against Yıldırımoğlu Fermantasyon Gıda San. ve Tic. A.Ş., the Board has assessed that Article 4 of the Law No. 4054 was violated by restricting both active and passive sales of the company’s dealers outside a certain region and customer group. Upon Yıldırımoğlu’s application, conclusion of the investigation by settlement and commitment procedures has been decided. Within the scope of the commitment text it has been stated that;

    • the contractual provisions that have identified competitive problems will be removed, and the actual practices in this context will be terminated,
    • new contracts will be submitted to the Board,
    • those provisions that cause prohibition of active/passive sales and customer allocation will not be included in the new contracts,
    • the aforementioned actual practices will be terminated as of the notification of the short decision, and
    • all contracts will be revised in accordance with the commitments within 6 months as of the notification of the reasoned decision.

The Board decided to conclude the investigation by means of making the commitments binding on the grounds that; the commitments submitted by Yıldırımoğlu were sufficient to eliminate the competitive concerns and that the newly added “Dealership Maximum Profit” section of the agreements, which determine the maximum profit margin of the dealers, falls within the scope of “determination of the maximum sales price by the supplier” within the scope of Communiqué No. 2002/2 and does not constitute an obstacle to benefit from this group exemption.

Investigation Against Iveco Terminated with Commitment

The Board accepted that the behaviour of Iveco, which was evaluated within the scope of the investigation conducted against Iveco Araç Sanayi ve Ticaret Anonim Şirketi in order to determine whether the region and customer allocation including online sales had violate Article 4 of the Law No. 4054 is included in the region and customer allocations, however decided that the commitment mechanism could be used, considering that this does not constitute anopen and hard-core infringement. As a result, it was decided to terminate the investigation with the acceptance of the commitments since the commitments submitted by Iveco were capable of eliminating competitive concerns.

Investigation Against Binboğa Concluded

The Board has decided that Binboğa Üretim Pazarlama Sanayi ve Ticaret AŞ had violated Article 4 of the Law No. 4054 by resale price maintenance of its buyers and has imposed an administrative fine of TRY 3,938,700.96 on the undertaking due to the violation of resale price maintenance.

The Reasoned Decision Regarding the “Reconsideration of the Hindering the On-Site Inspection Decision” of Wahl has been Published

In the decision published on the official website of the TCA; the revocation or rescission of the imposition of an administrative fine regarding the hindering of the on-site inspection by Wahl carried out within the framework of the preliminary investigation conducted on RRH Küçük Elektrik Aletler Ltd. Şti. and Wahl Elektrik Aletler Tic. Ltd. Şti. and Wahl Elektrik Aletler Tic. Şti., and the Board decision dated 11.05.2023 no. 23-21/410-140 has been requested within the framework of Article 11 of the Administrative Procedure Law.

In the application made by Wahl it has been stated;

  • that an on-site inspection without a judge’s decision constitutes the violation of the inviolability of the domicile regulated in Article 21 of the Constitution and therefore contrary to the Constitution,
  • the evidences obtained are unlawful and falls under the status of prohibited evidence,
  • The decision rendered by the Constitutional Court as a result of the individual application of Ford Otomotiv Sanayi A.Ş. is applicable to the concrete case,

and the revocation or rescission of the relevant decision and the non-imposition of the administrative fine on Wahl has been requested as a result.

As of the date the application has been made, only the short decision has been delivered by Wahl and the reasoned decision has not yet been notified. This particular has been taken into consideration by the Board and the application has been rejected since, within the scope of Article 11 of the Administrative Procedure Law an application can be made within the administrative litigation period and that the said period has not started as the reasoned decision has not yet been notified; thus it was evaluated that the application was not made within the periods stipulated in the relevant provisions of the legislation on the grounds that it did not meet the procedural requirements.

A Noteworthy Different Reasoning of a Board Member regarding the On-Site Inspections Conducted Without a Judicial Decision

With the decision of the Turkish Competition Authority dated 17.08.2023 no. 23-39/717-246 published on its website, due to the hindering/complicating of the on-site inspection intended to be carried out at Rahmi Seymen Özel Eğitim İnşaat Yayıncılık Tarım İşletmeleri Sanayi ve Tic. Ltd. Şti., it has been decided to impose the undertaking an administrative fine of five per thousandth of its 2022 gross revenues in accordance with subparagraph (d) of the first paragraph of Article 16 of the Law No. 4054.

During the on-site inspection at the address of the undertaking, it has been stated by the public relations officer that the on-site inspection would not be allowed and that remote access to the computer and e-mail of the representative would not be allowed. Accordingly, the TCA officers have issued an on-site inspection prevention minutes and left it with the undertaking. Thereafter, even though another on-site inspection has been carried out on another date, the attorney of the undertaking has stated that due to the health problems of the authorized representative’s wife had and his not being present at the school on the relevant date, and that such situation had arisen from a misunderstanding, and that they had objected the minutes of prevention the on-site inspection for the said reasons.Eventually this defence has not been accepted by the TCA and an administrative monetary fine has been imposed on the undertaking.

In fact, the most notable aspect of the said decision is the different reasoning note presented by the Board member Mr. Hasan Hüseyin Ünlü. The Board member has indicated that, with reference to an individual application decision of the Constitutional Court published in the Official Gazette on 20.06.2023, a violation decision was ruled regarding the exercise of the power of on-site inspection regulated in Article 15 of Law No. 4054, in the absence of a court order. He has noted that since the relevant legislative provision is currently in force, there is no obstacle to continue using the power of making an on-site inspection as regulated in the law, while he has also mentioned that after the issuance of the relevant Constitutional Court decision, it was problematic and uncertain as to in which direction the administrative judiciary would guide the practice for the time being. Therefore, he has emphasized that cases related to alleged acts of obstruction/delaying of the on-site inspections which are directly related to the exercise of the power of making on-site inspections and imposition of the relevant administrative fines should not be handled until precedent is established in the administrative judiciary.

The Reasoned Decision to Impose Administrative Fine on Aksaray Unlu Mamulleri for Providing False or Misleading Information has been Published

During the on-site inspection conducted within the scope of the preliminary investigation to determine whether Aksaray Unlu Mamülleri Gıda Sanayi ve Ticaret Limited Şirketi had violated Article 4 of the Law No. by resale price maintenance of its buyers, the Board has examined the dealership agreements obtained and found that the agreements were concluded for an indefinite period, contained provisions on the obligation to not compete, and included provisions on the determination of the resale price. In order to determine whether the agreements in question had been put into practice or not, Aksaray Unlu Mamulleri has been requested to provide a

copy of the agreements concluded with its customers.  In addition, the same agreements were also requested from the dealers in order to confirm whether these contracts reflected the reality or not.

When the contract samples submitted by Aksaray Unlu Mamulleri to the TCA were examined, it was observed that the contract concluded with Perla, one of its dealers, did not contain any provisions that created the suspicion that the resale price was determined differently from the contract obtained during the on-site inspection and an explanation was requested from Aksaray Unlu Mamulleri regarding this issue. In the reply letter submitted by Aksaray Unlu Mamulleri, in summary, it was stated that the difference in question was due to an employee’s mistake and that Aksaray Unlu Mamulleri did not have any behaviour to mislead the Board; whereas, the Board concluded that the contracts were prepared in a printed format since 33 contracts were in the same format and contained the same provisions, and did not rely on the allegation that this error was only due to employee error since all the parts that differed in the contracts were matters that raised competitive concerns; and assessed that the contract samples were changed while being sent to the Board and decided to impose an administrative fine on Aksaray Unlu Mamulleri.

Decision to Impose Administrative Fine to Sahibinden for Providing False or Misleading Information

Within the scope of the investigation conducted by the Board to determine whether Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. abused its dominant position in the real estate/vehicle sales/rental platform services market through data portability and other means, it was determined that Sahibinden submitted false/misleading information to the TCA and the basis of Sahibinden’s allegation that the Board’s calculations were incorrect was based on the false information submitted, and it was decided to impose an administrative fine on Sahibinden for submitting false or misleading information or documents.

Attorney-Client Privilege Requested by Oriflame Rejected

The Board decided that certain documents obtained during the on-site inspection conducted to determine whether Oriflame Kozmetik Ürünleri Tic. Ltd. Şti had violated Article 4 of the Law No. 4054  or not, the application made by the undertaking that certain documents obtained during the on-site inspection carried out within the scope of the preliminary investigation to determine whether there was a violation of Article 4 of the Law No. 4054 were of attorney-client privilege nature was rejected.

Oriflame requested the return of the documents alleged to be within the scope of attorney-client privilege, stating that the recipient or sender of the documents was an independent lawyer, did not have an employee-employer relationship with Oriflame and was not on the payroll of any Oriflame subsidiary. The Board evaluated the application and rejected it due to the reasons;

  • That no objection related to attorney-client privilege was raised during the on-site examination,
  • That the date of the relevant documents were prior dates typed before the commencement of the preliminary investigation and was therefore not relevant to the exercise of the right of defence.

Administrative Fine Imposed on Private Saint-Joseph French High School for Providing False or Misleading Information

Within the scope of the investigation conducted by the Board to determine whether the private educational institutions Of France origin operating in Istanbul had violated Article 4 of the Law No. by jointly determining the school fees and their components and salaries of the Turkish teachers, it was determined that the information/documents submitted by Saint-Joseph French High School in terms of additional course fees, which is an important parameter within the behaviour of jointly determining salaries and is the focus of the investigation, were not correct, it was decided to impose a fine against the undertaking for submitting false or misleading information or documents.

Interim Measure Decision Has Been Taken Regarding Meta Platforms, Inc.’s Conduct of Data Merging Between the Threads App and the Instagram App

The Board has examined whether META violated Article 6 of the Law No. 4054 by integrating the Threads app, which META introduced in Türkiye in July 2023, into the Instagram app, and it was decided that there was no need to issue any provisional injunction, taking into account that META introduced updates that enabled Threads profiles to be deleted without deleting the user’s associated Instagram account.

However, it was determined that META merged the data obtained through the Threads app with the data obtained from Instagram, and it was evaluated that the possible anti-competitive effects of this practice should be evaluated in detail within the scope of the investigation, taking into account the obligations to end the data merging action stipulated in the Board’s decision dated 20.10.2022 no. 22-48/706-299.

As a result of the Board’s assessment, due to the concerns that the merging of META’s data obtained through the Threads app with Instagram data would increase META’s market power and restrict the free choices of the consumers, it has been concluded that it is necessary to take an interim measure decision against these behaviours, which were found to be infringing by the Board’s decision dated 20.10.2022 no. 22-48/706-299. With this decision, it is aimed to prevent irreparable damages and to prevent the merging of the data obtained by META through the Threads app with Instagram data until the final decision is made.

As a result of the decision, META announced that the Threads app was closed to usage  due to the Board decision.

2023 Merger and Acquisition Outlook Report Published

2023 Merger and Acquisition Overview Report has been published in the TCA’s official website on 05.01.2024.

    • In terms of All Transactions:
    • 217 merger and acquisition and 3 privatization transactions have been examined.
    • The final decision on the notified merger and acquisition transactions has been taken in an average of 13 days from the last notification date.
    • In 2023, one transaction was taken under final examination (Phase II), and it has been stated that the examination of the relevant transaction is still ongoing. As stated in the announcement dated 07.12.2023 which has been published on the official website of the Turkish Competition Authority, it is seen that the relevant transaction is the acquisition of the sole control of Stellantis Otomotiv Pazarlama A.Ş. by Tofaş Türk Otomobil Fabrikası A.Ş..
    • A total of 113 examinations of mergers and acquisitions were conducted regarding foreign to foreign transactions carried out abroad, and the total transaction value notified for these transactions is approximately TRY 57 trillion 362 billion.
    • When the transactions planned to be carried out by foreign investors are ranked according to the transaction value, it is observed that the most invested sectors are “computer programming, consultancy and related activities”, “programming and publishing activities” and “manufacture of food products”.
    • In terms of Transactions related to Türkiye:
    • In 94 of the examined transactions, the target company is based in Türkiye and the total transaction value of these transactions is TRY 162 billion 555 million excluding the privatizations.
    • It is observed that the highest transaction value is related to the sector of “animal production”, and the two sectors with the highest number of transactions are “generation, transmission and distribution of the electrical energy” and “computer programming, consultancy and related activities”. The main field of activity with the highest transaction volume is “agriculture, forestry and fishing” with TRY 36.8 billion, followed by “transport and storage” with TRY 34.3 billion.
    • 35 merger and acquisition transactions are related to investments by foreign investors in companies based in Türkiye.

    When the Report is examined, it is seen that the sector of “computer programming, consultancy and related activities”, which is one of the most notified areas regarding the Transactions related to Türkiye in 2023, is also one of the sectors with the highest number of investments made by foreigners in terms of transaction value within the framework of investments made by foreigners worldwide. Moreover, while the total transaction value of all transactions is around TRY 57 trillion 524 billion, TRY 57 trillion 361 billion of this amount is composed of foreign transactions in which all parties are foreign. Although the number of examined transactions are decreased by approximately 12% compared to the previous year, it is noteworthy that the transaction value is the highest level of the last 10 years in Turkish lira basis and increased by 57% in US dollars basis compared to the previous year.

     

    BSH Commitments Re-evaluated

    Regarding the allegation that BSH Ev Aletleri San. ve Tic. A.Ş. had violated Article 4 of the Law No. 4054 by preventing its authorised dealers from selling via the internet and/or interfering in resale prices, the commitments regarding the free sale of authorised dealers in the selective distribution system over the platforms were accepted and made binding by the Board on 08.09.2022 and the investigation was concluded in terms of the allegation of online sales ban on authorised dealers.

However, BSH has applied to the TCA for the re-evaluation of the commitments that were made binding on 08.09.2022 and taking the criteria applied in the Arçelik Pazarlama AŞ decision dated 08.09.2022 into consideration when the commitments were made binding, BSH has applied to the TCA for the re-evaluation of the additional agreements made with the authorised dealers within the scope of the commitment to allow sales in the online marketplaces made binding on 08.09.2022, BSH has requested that two new criteria be added and one criterion be amended in addition to the criteria included in the text of the commitment and accepted by the Board regarding the conditions in the additional agreements made with authorised dealers within the scope of the commitment to allow sales on online marketplaces.

Within the scope of the Board decision published on 04.01.2024, it was stated that the criteria accepted in the Arçelik decision had not yet been put into practice at the time BSH’s commitments were discussed and finalised, and that the market conditions that constituted the basis of the BSH decision had changed substantially with the implementation of these criteria in the following period. As a result, it was decided that the final version of the commitment regarding the ability of authorised dealers to sell freely through platforms should be determined by the inclusion of an amendment regarding one condition and two new conditions.

Activision Blizzard Acquisition by Microsoft Has Been Authorised

The Turkish Competition Authority authorised Microsoft Corporation’s acquisition of the sole control of Activision Blizzard Inc. While Microsoft provides services to gamers with products such as Xbox game consoles and Surface series personal computers, it is engaged in activities such as both first-party game development as well as publishing and distributing second/third party games in the gaming industry. Activision Blizzard, on the other hand, focuses on computer and console games. While evaluating the transaction, the Board considered the horizontal and vertical overlaps of the markets in detail.

Markets with horizontal overlap include areas such as game development and release, and game distribution. However, it was determined that there were no competition concerns due to the market shares of the parties being below 20 per cent and the existence of competitors that may exert competitive pressure. Vertical overlap was observed in markets such as game development and release, console hardware and cloud gaming services. For example, Microsoft’s activities in the console hardware market overlap vertically with Activision Blizzard’s activities in game development. However, the Board concluded that Microsoft had no incentive to restrict access to its competitors and would not destabilise the market. Consequently, the Board approved the transaction and found that competition was not substantially lessened.